Part VII Rights, Ch.44 Legality

This chapter identifies and explores the relationship between the common law principle of legality and the Australian Constitution. To this end, the chapter considers in some detail how the courts might use the Constitution to provide a stronger normative justification for the principle, better fix the content of the rights it operates to protect, and inform how it is applied. The analysis undertaken is based on the view that much of the recent (and likely future) development of the principle in Australia—indeed the principles of statutory interpretation more generally—may well be constitutionally driven. To do so, the present status of the principle of legality is outlined in this chapter. Its evolution in Australian law and the key points of doctrinal controversy and methodological disagreement are also traced and identified.